Civil Liberties: Symbolic Speech, Obscenity, Privacy, and Religion, leading into Civil Rights
Symbolic Speech
Definition: Actions that communicate a political opinion without involving spoken, written, printed, or broadcast words.
Examples:
Wearing a black armband to protest a war.
Burning a flag.
Protection by Courts:
Historically, symbolic speech is almost always protected.
Caveat: The action must otherwise be considered legal.
Examples of Legality/Illegality:
Burning a comforter (legal) vs. burning a flag (also legal, despite higher political value).
Illegal Actions: Cannot be protected by claiming symbolic speech.
Example: The Weather Underground group (1970) claimed robbing banks to overthrow capitalism was symbolic speech; the court ruled robbing a bank is illegal regardless of political message.
Key Principle: A political message is protected only if the action would be legal if it weren't political.
Further Examples:
Wearing an armband to protest a war is legal because wearing an armband is generally legal.
Blocking traffic as a protest is illegal because blocking traffic is illegal even without a political motive, unless a permit is obtained.
Obscenity and the Miller Test
Core Principle: If something is defined as obscene, it is not considered free speech and can therefore be regulated, punished, or stopped.
Historical Context:
For about 150 years, courts have wrestled with this definition.
Up until about 50 years ago, states had varying definitions of obscenity, which they used to limit speech or action (e.g., Oklahoma banned public dancing for almost 50 years).
The Supreme Court developed the Miller Test to provide a broad, clarifying definition of what is protected and what is not.
The Miller Test (Three Criteria): To be considered obscene, something must satisfy all of these criteria. If it fails one or more, it is usually not considered obscene and therefore protected speech.
Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest.
Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law.
Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value (often referred to as the "SLAPS test").